Imperial Acts Application Act 1980 PDF

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Version No. 016

Imperial Acts Application Act 1980 No. 9426 of 1980 Version incorporating amendments as at 30 August 2017 TABLE OF PROVISIONS Section

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Short title, commencement and division

Part I—General

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Definition

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Transcribed enactments

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Enactment not affected by repeal

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Repeal

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Powers of the Governor in Council

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Part II—Transcribed enactments 8

Transcribed enactments

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Division 1—Elections

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Division 2—Habeas corpus

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Division 3—Justice and liberty

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Division 4—Monopolies

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Schedule

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Endnotes

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General information

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Table of Amendments

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Amendments Not in Operation

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Explanatory details

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Version No. 016

Imperial Acts Application Act 1980 No. 9426 of 1980 Version incorporating amendments as at 30 August 2017 An Act to make further provision with respect to certain enactments of the Parliament of England and of the Parliament of Great Britain and of the Parliament of the United Kingdom of Great Britain and Ireland in force at the time of the passing of the Act 9 George IV c. LXXXIII, to incorporate into the Statute Law of Victoria certain of such enactments, to amend the Imperial Acts Application Act 1922 and for other purposes. BE IT ENACTED by the Queen's Most Excellent Majesty by and with the advice and consent of the Legislative Council and the Legislative Assembly of Victoria in this present Parliament assembled and by the authority of the same as follows (that is to say): S. 1 amended by No. 38/2017 s. 87.

1 Short title, commencement and division This Act may be cited as the Imperial Acts Application Act 1980 and shall come into operation on a day to be fixed by proclamation of the Governor in Council published in the Government Gazette and is divided into Parts and Divisions as follows: Part I—General, ss 2-7 Part II—Transcribed Enactments, s. 8 Division 1—Elections Division 2—Habeas corpus Division 3—Justice and liberty Division 4—Monopolies. *

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Part I—General 2 Definition In the construction of this Part unless inconsistent with the context or subject-matter— the expression enactment includes any Statute Ordinance or other Provision in the nature of a Statute or Ordinance set out as such in the editions of the Statutes hereinafter referred to and also includes any part of such Statute Ordinance or other Provision and also includes any Statute or part of a Statute made or passed in or since the reign of George the First and also includes any Schedule to any such enactment. S. 3 amended by No. 9549 s. 2(1)(Sch. item 83).

3 Transcribed enactments The enactments mentioned in the Schedule to the extent set out in Part II shall continue to have in Victoria whether separately or in combination with any unrepealed enactment or statutory provision such force and effect, if any, as they had at the commencement of this Act. In construing any such enactment where the whole Statute Ordinance or other Provision is not set out in full regard may be had to any part thereof not so set out. In the case of enactments made or passed prior to the reign of Henry VII the translation from the original Latin or Norman-French in Part II shall be deemed to be correct. The titles to the Divisions of Part II shall be read as descriptive merely and not as affecting the construction of the enactment or enactments set out thereunder.

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4 Enactment not affected by repeal (1) Nothing in section 5 shall affect or apply to or be construed as affecting or applying to any enactments which (independently of the provisions of the Act 9 George IV c. LXXXIII)— (a) by express words apply to the dominions or other possessions of the Crown and which on their proper construction are applicable to Victoria as being included in such dominions or other possessions; and (b) by necessary intendment either as involving matters of Imperial concern or otherwise are applicable to Victoria. (2) Without limiting the generality or effect of the provisions of the last preceding subsection nothing in section 5 shall affect or apply to or be construed as affecting or applying to any enactments (so far as they are in force in England at the passing of this Act) relating to the security or safety of the Sovereign. (3) Nothing in section 5 shall affect or apply to or be construed as affecting or applying to any enactment relating to naval or military matters or to naturalization nationality or aliens or to copyrights patents of inventions or designs or trade marks or to any matter with respect to which the Parliament of the Commonwealth of Australia has made or hereafter makes any law with which a repeal if effected by such section would be inconsistent. 5 Repeal Save as aforesaid all the enactments (commencing with the Statute of Merton 20 Henry III A.D. 1235-6) in force in England at the time of the passing of the Act 9 George IV chapter LXXXIII are so far as they are in force in Victoria and so far

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as the Parliament of Victoria has authority to repeal them hereby repealed in and for Victoria. Provided that where any enactment not repealed by this section has been repealed confirmed revived or perpetuated by any enactment hereby repealed such repeal confirmation revivor or perpetuation shall not be affected by the repeal effected by this section: And the repeal by this section of any enactment shall save as hereinafter provided not affect any enactment in which such enactment has been applied incorporated or referred to: And the repeal by this section of any enactment shall not affect the construction of any enactment not so repealed whether as regards the past or the future: And this section shall not affect the validity invalidity effect or consequences of anything already done or suffered—or any existing status or capacity—or any right title obligation or liability already acquired accrued or incurred or any remedy or proceeding in respect thereof—or any release or discharge of or from any debt penalty obligation liability claim or demand or any indemnity—or the proof of any past act or thing: Nor shall this section affect the validity of any marriage heretofore or hereafter celebrated or any established principle or rule or law equity or established jurisdiction form or course of pleading practice or procedure or any existing usage franchise liberty custom privilege restriction exemption office appointment payment allowance emolument or benefit notwithstanding that the same respectively may have been in any manner affirmed recognized or derived by in or from any enactment hereby repealed:

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Nor shall this section revive or restore any jurisdiction office duty drawback fee payment franchise liberty custom right title privilege restriction exemption usage practice procedure or other matter or thing not now existing or in force: Provided also and without limiting the generality of the foregoing provisos that the repeal effected by this section shall save as hereinafter provided not affect any Statute or Ordinance made in Victoria or made in New South Wales and in force in Victoria whether as regards the past or the future and that such repeal shall not prevent the recognition in Victoria of any status right title or other matter or thing elsewhere acquired under any of the enactments repealed by this section in the same circumstances and to the same extent as such recognition would have been granted or given prior to the commencement of this Act: Provided further that the repeal effected by this section shall affect section one hundred and ninety of the Supreme Court Act 1958 so far as such section may be read as incorporating any enactment but not further or otherwise. 6 Powers of the Governor in Council The Governor in Council may at any time and from time to time by proclamation published in the Government Gazette indicate any enactment or enactments as an enactment or enactments which is or are to be added to those mentioned in the Schedule to this Act and to those set out in Part II of this Act and thereupon such enactment or enactments shall be deemed to have been mentioned at the appropriate place in the Schedule and set out in Part II and the effect shall be the same as if the Schedule and Part II had at the time of the passing of this Act included such added

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enactment or enactments and sections 3 and 5 of this Act shall be construed accordingly. S. 7 repealed by No. 10087 s. 4(1)(Sch. 2).

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Part II—Transcribed enactments S. 8 amended by Nos 9549 s. 2(1)(Sch. item 84(a)(b)), 60/2013 s. 6(Sch. 2 items 2.1, 2.2), 21/2015 s. 3(Sch. 1 item 26).

8 Transcribed enactments The enactments referred to in section 3 of this Act shall have effect and be construed as provided by that section and are set out in this Part under the Divisions mentioned in section 1 as being included in Part II and such Divisions shall be deemed to be Divisions of this Part.

Division 1—Elections Freedom of election.

[1275] 3 Edward I (Statute of Westminster the First) C.V. And because elections ought to be free, the King commandeth upon great forfeiture, that no man by force of arms, nor by malice, or menacing, shall disturb any to make free election.

Division 2—Habeas corpus [1640] 16 Charles I c. X An Act for the regulating of the privy council, and for taking away the court commonly called the star-chamber. Whereas by the great charter many times confirmed in parliament, it is enacted, That no freeman shall be taken or imprisoned, or disseised of his freehold or liberties or free customs, or be outlawed or exiled or otherwise destroyed, and that the King will not pass upon him, or condemn him; but by lawful judgement of his peers, or by the law of the land: (2) and by another statute made in the fifth year of the reign of King Edward the Third, it is enacted, That no man shall be attached by any accusation, nor forejudged of life or limb, nor his lands, tenements, goods or

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chattels seized into the King's hands, against the form of the great charter and the law of the land: (3) and by another statute made in the five and twentieth year of the reign of the same King Edward the Third, it is accorded, assented and established, That none shall be taken by petition or suggestion made to the King, or to his council, unless it be by indictment or presentment of good and lawful people of the same neighbourhood where such deeds be done, in due manner, or by proceeds made by writ original at the common law, and that none be put out of his franchise or freehold, unless he be duly brought in to answer, and forejudged of the same by the course of the law, and if any thing be done against the same, it shall be redressed and holden for none: (4) and by another statute made in the eight and twentieth year of the reign of the same King Edward the Third, it is amongst other things enacted, That no man of what estate or condition forever he be, shall be put out of his lands or tenements, nor taken, nor imprisoned, nor disinherited, without being brought in to answer by due process of law: (5) and by another statute made in the two and fortieth year of the reign of the said King Edward the Third, it is enacted, That no man be put to s. 8 answer, without presentment before justices, or matter of record, or by due process and writ original, according to the old law of the land, and if any thing be done to the contrary, it shall be void in law, and holden for error: (6) and by another statute made in the six and thirtieth year of the same King Edward the Third, it is amongst other things enacted, That all pleas which shall be pleaded in any courts before any of the King's justices, or in his other places, or before any of his other ministers, or in the courts and places of any other lords within the realm, shall be entered and

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enrolled in Latin: (7) and whereas by the statute made in the third year of King Henry the Seventh, power is given to the chancellor, the lord treasurer of England for the time being, and the keeper of the King's privy seal, or two of them, calling unto them a bishop and a temporal lord of the King's most honourable council, and the two chief justices of the King's bench and common pleas for the time being, or other two justices in their absence, to proceed as in that act is expressed, for the punishment of some particular offences therein mentioned: (8) and by the statute made in the one and twentieth year of King Henry the Eighth, the president of the council is associated to join with the lord chancellor and other judges in the said statute of the Third of Henry the Seventh mentioned: (9) but the said judges have not kept themselves to the points limited by the said statute, but have undertaken to punish where no law doth warrant, and to make decrees for things having no such authority, and to inflict heavier punishments than by any law is warranted. II. And for asmuch as all matters examinable or determinable before the said judges, or in the court commonly called the star-chamber, may have their proper remedy and redress, and their due punishment and correction, by the common law of the land, and in the ordinary course of justice elsewhere: (2) and forasmuch as the reasons and motives inducing the erection and continuance of that court do now cease: (3) and the proceedings, censures and decrees of that court, have by experience been found to be an intolerable burthen to the subjects, and the means to introduce an arbitrary power and government: (4) and forasmuch as the council-table hath of late time assumed unto itself a power to intermeddle in civil causes and matters only of private interest between party and party, and have adventured to 9

determine of the estates and liberties of the subject, contrary to the law of the land and the rights and privileges of the subject, by which great and manifold mischiefs and inconveniencies have arisen and happened, and much incertainty by means of such proceedings hath been conceived concerning mens rights and estates; for settling whereof, and preventing the like in time to come. III. Be it ordained and enacted by the authority of this present parliament, That the said court commonly called the star-chamber, and all jurisdiction, power and authority belonging unto, or exercised in the same court, or by any of the judges, officers or ministers, thereof, be from the first day of August in the year of our Lord God one thousand six hundred forty and one, clearly and absolutely dissolved, taken away and determined: (2) and that from the said first day of August neither the lord chancellor, or keeper of the great seal of England, the lord treasurer of England, the keeper of the King's privy seal, or president of the council, nor any bishop, temporal lord, privy counsellor or judge, or justice whatsoever, shall have any power or authority to hear, examine or determine any matter or thing whatsoever, in the said court commonly called the star-chamber, or to make, pronounce or deliver any judgement, sentence, order or decree, or to do any judicial or ministerial act in the said court: (3) and that all and every act and acts of parliament, and all and every article, clause and sentence in them, and every of them, by which any jurisdiction, power or authority is given, limited or appointed unto the said court commonly called the star-chamber, or unto all or any of the judges, officers or ministers thereof, or for any proceedings to be had or made in the said court, or for any matter or thing to be drawn unto question, examined or determined there, shall for so much as concerneth the said 10

court of star-chamber, and the power and authority thereby given unto it, be from the said first day of August repealed, and absolutely revoked and made void. IV. And be it likewise enacted, That the like jurisdiction now used and exercised in the court before the president and council in the marches of Wales: (2) and also in the court before the president and council established in the northern parts: (3) and also in the court commonly called the court of the duchy of Lancaster, held before the chancellor and council of that court: (4) and also in the court of exchequer of the county palatine of Chester, held before the chamberlain and council of that court: (5) the like jurisdiction being exercised there, shall from the said first day of August one thousand six hundred forty and one, be also repealed and absolutely revoked and made void; any law, prescription, custom or usage, or the said statute made in the third year of King Henry the Seventh, or the statute made in one and twentieth of Henry the Eighth, or any act or acts of parliament heretofore had or made, to the contrary thereof in any wise notwithstanding: (6) and that from henceforth no court, council or place of judicature, shall be erected, ordained, constituted or appointed within this realm of England, or dominion of Wales, which shall have, use or exercise the same or the like jurisdiction as is or hath been used, practised or exercised in the said court of star-chamber. V. Be it likewise declared and enacted by authority of this present parliament, That neither his Majesty, nor his privy council, have or ought to have any jurisdiction, power or authority, by English bill, petition, articles, libel or any other arbitrary way whatsoever, to examine or draw into question, determine or dispose of the lands,

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tenements, hereditaments, goods or chattels of any of the subjects of this kingdom, but that the same ought to be tried and determined in the ordinary courts of justice, and by the ordinary course of the law. VI. And be it further provided and enacted, That if any lord chancellor, or keeper of the great seal of England, lord treasurer, keeper of the King's privy seal, president of the council, bishop, temporal lord, privy counsellor, judge or justice whatsoever, shall offend, or do any thing contrary to the purport, true intent and meaning of this law, then he or they shall for such offence forfeit the sum of five hundred pounds of lawful money of England unto any party grieved, his executors or administrators, who shall really prosecute for the same, and first obtain judgement thereupon, to be recorded in any court of record at Westminster, by action of debt, bill, plaint or information, wherein no essoin, protection, wager of law, aid prayer, privilege, injunction or order of restraint, shall be in any wise prayed, granted, or allowed, nor any more than one imparlance: (2) and if any person against whom any such judgement or recovery shall be had as aforesaid, shall after such judgement or recovery offend again in the same, then he or they for such offence shall forfeit the sum of one thousand pounds of lawful money of England unto any party grieved, his executors or administrators, who shall really prosecute for the same, and first obtain judgement thereupon, to be recorded in any court of record at Westminster, by action of debt, bill, plaint or information, in which no ession, protection, wager of law, aid prayer, privilege, injunction or order of restraint shall be in any wise prayed, granted or allowed, nor any more than one imparlance: (3) and if any person against whom any such second judgement or recovery shall be had as aforesaid, shall after such 12

judgement or recovery offend again in the same kind, and shall b...